Court: No forced medication for Loughner

by Michael Kiefer - Jul. 12, 2011 06:07 PMThe Arizona Republic

A federal appeals court Tuesday upheld its stay against forcibly medicating Jared Loughner, the defendant in the Tucson-area shooting, and ordered the prosecution and defense attorneys to prepare for a hearing on the matter at the end of August.

At issue are a pair of U.S. Supreme Court rulings that specify when prisoners can be forced to take medications for psychiatric reasons. One requires only an administrative hearing if the inmate is a danger to himself and others; the other demands a court hearing if the inmate is being forcibly medicated to be restored to competency to stand trial.

Loughner was medicated, ostensibly for dangerousness, after a hearing in front of prison staff, but his attorneys alleged that the federal Bureau of Prisons was making an "end run" around the rules because its warden and psychological evaluators stated that they needed to treat the underlying psychiatric condition with the medication.

In the months after the January shootings, which killed six and wounded 13, including U.S. Rep. Gabrielle Giffords, Loughner, 22, was diagnosed as a paranoid schizophrenic and sent to a federal facility in Springfield, Mo., for psychiatric restoration.

His attorneys immediately asked to be advised if he was to be medicated. Restoration to competency often involves medication, especially for schizophrenics.

Citing the two Supreme Court decisions, U.S. District Judge Larry Burns ruled that there would only be a hearing if the medication were for restoration, not for dangerousness. And, unbeknownst to the court or the opposing lawyers, the Bureau of Prisons determined that Loughner was dangerous and began medicating him on June 22. Burns upheld the decision, however.

Loughner's attorneys, Judy Clarke and Reuben Camper Cahn, appealed to the U.S. 9th Circuit Court of Appeals, which stopped the forced medication pending review of the case. The attorneys debated the question in California on July 7. A three-judge panel ruled to keep the stay in place on Tuesday.

One sticking point is that the Supreme Court case that allows for a mere administrative hearing pertained to a prison inmate who had already been convicted. The second case, which required a court hearing, pertained to a "pretrial detainee," like Loughner.

"Because Loughner had not been convicted of a crime, he is presumptively innocent and therefore entitled to greater constitutional protections than a convicted inmate," Tuesday's ruling said.

But, at this point, it narrowly applies to whether the preliminary injunction remains in place.

Now both sides must argue their cases before the appeals judges determine which type of hearing Loughner must undergo.